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Dover Elevator Co. v. Swann3/25/1994
cluding his reliance on res ipsa loquitur.
In addressing this question, the Court of Special Appeals preliminarily acknowledged that, "'if there is direct evidence of negligence, and all the facts causing the injury are known and testified to by witnesses at the trial,'" there is no basis for the application of res ipsa loquitur. Swann, 95 Md. App. at 391, 620 A.2d at 1002 (quoting Frenkil v. Johnson, 175 Md. 592, 605, 3 A.2d 479, 485 (1939)). The intermediate appellate court also relied substantially on our opinion in Blankenship v. Wagner, including the following proposition:
"'If the plaintiff has circumstantial evidence which tends to show the defendant's negligence (and which is therefore consistent with the inference relied upon in res ipsa loquitur) he should not as a matter of policy be discouraged from coming forth with it. If, however, the evidence introduced by the plaintiff or the defendant shows that everything relative to the case is known, and that the injury might have been caused by something other than defendant's negligence (thereby negating the inference normally relied upon in res ipsa loquitur), then the plaintiff will not be allowed to avail himself of the doctrine. In such a case, if plaintiff's proof fails to make out a prima facie case of negligence then it is proper to direct a verdict for the defendant.'" (Emphasis in original and emphasis deleted).
Swann, 95 Md. App. at 394-95, 620 A.2d at 1003 (quoting Blankenship, 261 Md. at 46, 273 A.2d at 417).
Nonetheless, the Court of Special Appeals in the instant case held that "Swann's attempt to prove specific acts of negligence did not prevent him from requesting that the jury be instructed on both negligence and res ipsa loquitur." Swann, 95 Md. App. at 397, 620 A.2d at 1005. The intermediate appellate court determined that Swann did not purport to furnish a complete explanation of the elevator's misleveling, even in light of specific evidence regarding Dover's failure to replace contacts 14 and 15, its allegedly inadequate maintenance of elevator number two, and its allegedly deficient service records. In examining this evidence, the court declared the following:
"Swann did not, however, purport to furnish a complete explanation of the accident. Indeed, Swann offered evidence establishing that Dover responded to reports of mislevelings on two separate occasions following the January 7th repair [when contacts 14 and 15 were filed]. There was no evidence of what, if any, corrective measures Dover took on those dates. It may well be that Dover negligently repaired the elevator on one, or both, of those occasions and such negligent act or acts caused the February 2nd misleveling incident. Further, at the close of the evidence, there was a dispute as to what caused the accident. Bothell testified that it was proper to clean, rather than replace, the 14 and 15 contacts, and that the door clutch mechanism prevents the elevator doors from opening when the elevator cab is greater than an inch or two from floor level. Therefore, 'reasonable men might [have] differed as to the effect of the evidence before the jury.'"
Swann, 95 Md. App. at 395-96, 620 A.2d at 1004 (quoting 1 Stuart M. Speiser, Res Ipsa Loquitur ยง 5:19, at 190 (1972)).
We find that the plaintiff's expert witness, Donald Moynihan, did purport to furnish a sufficiently complete explanation of the specific causes of elevator number two's misleveling, whi
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